Public Attacks - Usually a Bad Idea

Over the weekend, a furor arose in our little ed. leadership community over an article by Fenwick English listing the names of the The 10 Most Wanted Enemies of American Public Education’s School Leadership. One of the named individuals, Rick Hess, called them out on it - and rightly so. It was a bad move. 

Over the past several years, UCEA has sought to better engage the policy arena - thinking that by doing so we can increase the quality of leadership preparation, the leaders they produce, and thus our schools. This is a valid and noble goal as the quality of some preparation programs is highly suspect. 

But, UCEA must walk a fine line when it comes to advocacy of positions or criticism of others. Being a member of UCEA now for many years, it is absolutely no secret that it has a position - a highly liberal one. But, UCEA is a institutional membership organization, not an individual membership organization. Meaning, my university and most other research universities around the country are the real members, not the professors. And, I would imagine, there is a substantial divide between the positions of institutions and the positions of ed. leadership professors. How many university presidents would create such an enemies list? 

If we (and I am still very supportive of UCEA) are going to enter the advocacy arena in a bigger way, it must be done with class - even if the opposition lacks it in your opinion. We fancy ourselves as scholars and believe in the power of ideas, let us permit those ideas to be our positions. 

Thoughts Prompted by Recent Chronicle of Higher Education Commentary on Academic Freedom

As someone whose research interests center on speech issues in higher education, I read with interest a recent commentary by Joan DelFattore in the Chronicle of Higher Education entitled "To Protect Academic Freedom, Look Beyond the First Amendment."  I recommend the commentary, and the author makes several good points regarding current debates over First Amendment protection for academic freedom.  For instance, and significantly, even if the Supreme Court ultimately decides that professorial speech receives some degree of constitutional protection, then any such constitutional safeguards for faculty speech will not be equivalent to professionally grounded protections for academic freedom, such as those provided through tenure.  As the commentary notes as well, problems arise in evaluating the quality or competency of faculty speech in relation to academic freedom concerns (though as dicussed below, I'm not sure the problem is as severe as the author suggests). 

                                                                   

However, the author’s positions regarding First Amendment protection for academic freedom are questionable on several fronts.  In general, the Garcetti v. Ceballos decision, which is discussed in the article, has been criticized for creating a bright line rule for public employee speech in general.  Under Garcetti, a public employee is not entitled to First Amendment protection for speech made pursuant to carrying out his or her professional employment duties.  Thus, the decision is worrisome in the creation of a standard that denies any hope of First Amendment protection to public employees in many circumstances.  The Garcetti decision, however, explicitly left open whether it applies to faculty speech.  For a discussion of Garcetti's application at the P-12 level, see Scott Bauries' recent posting and the accompanying comments.

 

I think that one problem with the commentary is not taking a broader view of Garcetti as a poor decision generally, one that I hope future Supreme Court decisions might carve out reasonable exceptions to in relation to public employees overall (including P-12 teachers) and not just for higher education faculty members.  I suggest, in contravention to the logic of the majority in Garcetti, that a place should exist for the possibility of First Amendment protection for speech by public employees in special circumstances.  Accordingly, I think the author is somewhat off the mark by only focusing on Garcetti in relation to faculty members and not considering  the decision in a somewhat broader context and the fact that Garcetti represented a poor decision in many respects in relation to public employees in general.   

                                                                                                                                                                    

Turning specifically to faculty, my stance is that a public college or university should not be able to invite and/or insist upon a faculty employee providing his or her honest views and opinions, and then be able to pull out the "speech rug" from under the employee and engage in retaliation for speech not pleasing to the employer.  While not arguing that some kind of forum has been created, I would argue that something somewhat analogous may be created by public employers for their employees.  If a college or university adopts an academic freedom policy that applies to faculty members, then it shouldn't also be able to rely on Garcetti to claim ownership of that speech when in an official policy it previously claimed that it wanted unfettered (independent) views and discussions from the faculty in teaching and research and institutional governance matters. While most public employers may not create such policies, they have been created at colleges and universities, and courts should not ignore them in relation to the applicability of the Garcetti standards.                                                                                                                                                               

Thus, I would argue that while the First Amendment is certainly no replacement for professional standards and legally enforceable protections in relation to faculty provided through such mechanisms as tenure, I still think that courts should be able to protect faculty speech in special situations, such as when officials clearly seek to quash speech, especially that taking place in the classroom or involving scholarship, with which they simply disagree and act without professional justification.  The author seems to suggest (at least to me) that courts would be left to evaluate the content of a faculty member’s speech if the First Amendment applies to faculty speech.  I actually think much of the inquiry could, instead, focus on whether school officials had acted in accordance with accepted professional standards and in alignment with official institutional policies and practices in taking action against a faculty member on the basis of his or her speech.

 

With faculty members, another issue not raised by the author concerns the difficulty in drawing the line between a faculty member speaking as a public employee or as a private citizen (where First Amendment protections would certainly apply).  When I give a presentation at a professional conference, am I speaking as a private citizen or as a public employee?  What about a blog posting that notes I am a faculty member?  As Robert O’Neil has pointed out, Garcetti, if applied to faculty members, would mean that they would often not enjoy at least the possibility of First Amendment protection for speech related to their areas of professional expertise.  To deny even the possibility of First Amendment protections in such circumstances seems somewhat strange indeed, especially when it may be difficult to classify when a faculty member is speaking as a private citizen versus as a public employee.

 

As a final note, the author doesn’t really address the changing nature of the faculty in the commentary.  The current reality is that public colleges and universities increasingly rely on faculty members hired off the tenure track, with more than half of faculty members now working in part-time positions, and many full-time faculty members also are employed without the possibility of tenure.  Many of these faculty members, especially those employed part time, work in an at-will capacity, with very limited legal protections.  And while the author mentions collective bargaining, what about those states that prohibit collective bargaining by faculty members in public higher education?  Institutions haven’t exactly embraced putting official policies and practices into place designed to protect faculty members employed off the tenure track. 

 

While I believe that we should certainly strengthen employment protections for non-tenure track faculty, including in relation to issues involving academic freedom, given the current employment reality for many of these faculty members, I hope that the First Amendment will continue to provide at least a minimum source of legal protection for them in relation to professional speech made in such contexts as the classroom.  I take this stance especially because college and university administrators, rather than seeking to work with faculty to bolster institutional policies and practices related to academic freedom in the wake of Garcetti, have, instead, tended to use the decision as a means to challenge speech claims by faculty members, including tenured ones, in legal decisions.  In such an environment, I believe it's critical to advocate for First Amendment speech rights for faculty.

Should Individuals with Past Drug Convictions be allowed to work in Schools?

This week the Ohio Supreme Court upheld the constitutionality of a law that required background checks for school employees and the firing of individuals who had been convicted of certain past crimes.  An employee of the Cincinnati school district who was fired under the law for a drug trafficking offense 32 years earlier brought a challenge to the law in Doe v. Ronan.  The plaintiff in this case earned his college degree after spending three years in a correctional facility for his 1976 conviction. He then became a drug-free counselor and eventually a hearing officer for the Cincinnati Public Schools.

The court declined to find that the law was unconstitutionally retroactive or that it impaired the employment contracts of school personnel.  Even though Doe had been employed by the district for 11 years, the employment contract at issue in this case was entered into in 2008, eight months after the passage of the 2007 background check law. Thus, the law's application was not retroactive.  It also did not impair the contract because the background check and employment disqualifications requirements are implied into the contracts made under the laws of Ohio for the relevant school personnel.

I think this is an interesting decision because the plaintiff's situation, as an 11 year employee of the district who lost his job because of a new background check law that found something he did 32 years ago, can generate a lot of sympathy.  Yet, if the legislature says individuals with former drug convictions cannot work in the schools, then they cannot.  

This case is a little more nuanced than I just described, though, because the law has a provision for individuals to show the district they have been rehabilitated, which would then allow them to be hired.  But this provision was not applicable here because drug offenses did not qualify and the administrative regulation that might have allowed this type of consideration was not yet in effect.

Personally, I'm in favor of the rehabilitation clauses that give an individual like Mr. Doe the ability to demonstrate that he is not a threat to students and that in fact he could make a good contribution to the district and their education of students in light of his experience and training.  But I also support the authority of the legislature to unilaterally decline hiring individuals who have committed certain crimes from working in schools. To me this case illustrates the need for thoughtful policy-making.  In so many instances laws that are passed have unintended consequences that seriously affect individuals like Mr. Doe.  The administrative process works to "fix" these problems but not in time to help someone like the plaintiff in this case who lost his job because of it.

Here is a link to the opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-5072.pdf

Value Added Evaluation Data and FOIA (State Versions, That Is)

Bruce Baker and Andy Rotherham brought my attention today to the issue of the public release of school data used in value-added teacher assessments (which are becoming popular, spurred by Race to the Top- Scott and my previous posts on the subject). This stems from a report out of New York today that the New York City Schools are set to release this value added data on 12,000 teachers ... tomorrow.

First, the basics. Public schools are public ... meaning taxpayer owned. Generally, then, the taxpayer owners (meaning the general public) have access to all the information produced and stored by these entities. In a democracy such a concept would make sense, right? Well, except when we are planning to bomb another country or when we are surveilling a criminal or when ... well, you get the idea, there are lots of exceptions. One other important point before we begin is that there is a federal Freedom of Information Act, but for this analysis we are concerned with state laws, as schools are state entities and school personnel are state employees. Here is a nice starting point for your state to get the basics.  

The exception at issue today is that of personnel information. They cover the gamut from very restrictive to very broad to non-existent. Let's start with Wyoming's quite broad protection against release of personnel records (Wyoming Statutes 16-4-201):

(iii) Personnel files except those files shall be available to the duly elected and appointed officials who supervise the work of the person in interest. Applications, performance ratings and scholastic achievement data shall be available only to the person in interest and to the duly elected and appointed officials who supervise his work.

Then there are some provisions in the middle. For instance, here's Delaware's relevant provision (Del. Code Ann. 29 - 10002): 

(1) Any personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy; ...

Arkansas is another similar to Delaware. But, other states are more restrictive in their provisions. Take Georgia, for instance (50-18-72):

(5) Records that consist of confidential evaluations submitted to, or examinations prepared by, a governmental agency and prepared in connection with the appointment or hiring of a public officer or employee; and records consisting of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees until ten days after the same has been presented to the agency or an officer for action or the investigation is otherwise concluded or terminated, provided that this paragraph shall not be interpreted to make such investigatory records privileged.

Other states, such as Illinois recently, considered adding such an exemption for public employees to their Open Records Acts. This story out of Illinois puts the number of states with some type of personnel evaluation exemption at around 35 - and without better data or time to investigate it myself, we'll go with that - meaning that perhaps 10-15 states may have no exemption at all for such records. 

Thus, even without considering the issue of value added data sets, in some states there is not even an opportunity to argue that such evaluation data is exempt. Therefore, before any teacher (or more likely union) argues that such data cannot be released they need to be familiar with their state's law governing open record exemptions.

Now, turning to the issue of whether raw value-added assessment data is exempt from public record laws let's consider a few different options.

Option 1: raw data contains information capable of linking to particular students = FERPA protects against release. But, putting FERPA aside ...

Option 2: raw data does not contain link to identifiable teachers (or students) = Grant open records request as no exemptions are likely to apply.

Option 3: raw data does contain link to identifiable teacher = probably release. Obviously this looks like the New York situation and the one Bruce and Andy were highlighting. However, the data is not an evaluation, it is simply raw data. That it affects an employee's future evaluation criteria is probably not relevant if the open records request is only for raw data. Obviously this is going to be the case most dependent on the statutory language. For instance Wyoming's inclusion of "scholastic achievement data" seems a good bet to open the door for exemption even of the raw data. Delaware's "relates to personal privacy" is a crack, but a small one and one I don't think most courts would extend such a amorphous concept to this extent. Georgia, Illinois and other states, though, would have no legal avenue available to block release. At best, the teacher or union might be capable of delaying the release. Given the fast-paced news cycles, though, and the lack of persistence among researchers, delaying the release even a few weeks might be good enough. 

Option 4: post-analysis, teacher-specific data leading to evaluation ratings = probably protect. This is where the easiest case is made to exempt the records, but still not in all states. If you are in a state with a personnel records protection provision, the evaluation analysis of the data is probably protected as I think most rational people consider job performance ratings to be personal in nature. This protection is not trivial, however, as working with the raw data is not a simple task and puts a much larger burden on journalists, researchers or other individuals requesting access. Obviously it is just much easier for them to publish the school's analysis and evaluation of the teacher. So, still not totally protected in this instance, but the easiest legal case to make as the statutes seem to imply, if not explicitly state, that such evaluations are protected. 

Option 5: I think it is possible to visualize a hybrid between Option 3 & 4 - or perhaps several (help me out Bruce as you know the data better than I do). The analysis of the value-added raw data would likely involve several steps, each of which would get us closer to protection as the data goes from unaggregated to aggregated to compared against previous years to compared against similar classes to graphed to assigned a rating code to translated to an evaluation statement. Where along that line of analysis protection begins ... well, that's the kind of question that takes decades of litigation. Each specific instance will be different, meaning there could be minimally 50 and potentially thousands of different scenarios possible as individual districts begin rolling out value-added systems.  

Okay, getting back on track then, this explains the New York story, for now anyway. New York has a mid-to-narrow exemption (see Section 87(2)) putting it somewhere between Delaware and Georgia (if I'm missing something, New York readers, let me know). Thus, as New York City's attorneys have concluded, the likely position is that the raw data should probably be released.

That's not the end of the story, though, for the union. Their next play, in the absence of a protective statute or regulation, is to attack the raw data as unreliable and thus (1) lacking a rational basis, (2) a violation of due process, (3) unconstitutionally vague, (4) discriminatory or some such effort. Remember, though, this is not an open records issue, it is attacking the facial validity of the entire value-added evaluation system (read the posts that Scott, Bruce, & myself wrote before). As Scott explained these efforts rarely win, but I kept the door slightly open if there is overwhelming evidence of statistical error. This is going to be an uphill battle, however, because the overriding public policy at play here dictates open government over privacy. That the rationale behind open government statutes is so clearly stated and privacy law is such a legal morass is not going to help this situation either.

Anyway, summarizing, I think the raw data is generally going to be made publicly open following FOIA requests. I think New York City is currently correct in their assessment that no exemption exists under New York's Freedom of Information Law. However, this is just my analysis after considering this issue for a single day and I want to caution against over reliance on my initial assumptions. A thorough analysis needs to be conducted of all 50 state policies, interpreting regulations, attorney general opinions, and previous case law. Further, data experts such as Bruce must assist the analysis with a complete understanding of each state's dataset and the possible links to both teachers and their evaluations within the datasets. Thus, there is still a lot of work left to be done. 

This is a legal frontier (another one of those enabled by technology) that most legislatures would not have contemplated as possible in enacting their open records laws. Thus, it is a great topic for us to debate further to inform future policy actions on open records personnel evaluation exemptions.

Sixth Circuit Applies Garcetti to Classroom Speech

Today, the Sixth Circuit issued an opinion in Evans-Marshall v. Board of Education applying Garcetti v. Ceballos to exempt the curricular and classroom speech of a non-renewed teacher from First Amendment protection.  I'll have more to say about the decision later, but on a first read, my initial impressions are that:

1.  The case ultimately presents a pretty straighforward application of the Garcetti holding, finding that classroom teaching and expressive curricular choices, as expression "pursuant to the official duties" of a teacher, is unprotected. 

AND

2.  The case should allow for a more definite (as opposed to hypothetical) inquiry as to whether the Garcetti rule makes sense, and whether it deserves to be rethought in the context of academic speech. 

The Sixth Circuit's slip opinion is here. 

Illinois School Finance Suit

I just received the pleadings on this, but school reform advocates last March filed a state constitutional lawsuit against the state superintendent, the state board of education, and the governor in Illinois.  The case is styled Carr et al. v. Koch.  This suit joins ongoing actions in Florida and California as another high-profile school finance challenge in a large state.  The plaintiffs have also secured for themselves the help of some big legal guns--Sidley Austin, LLP, a massive, Chicago-based law firm, is handling the case. 

Like the plaintiffs in the California suit, the plaintiffs in Illinois have (I think wisely) chosen to attack the state finance distribution system as not rationally related to a legitimate governmental objective.  The objective that most states trot out to justify their acquiescence in local inequalities in funding due to inequalities in tax bases is the tired old salve of "local control."  The plaintiffs essentially contend that this term has lost its meaning in the current world of standards, accountability, and NCLB, and I agree.  Currently, the case is at the motion-to-dismiss stage, and my understanding is that the state is grounding its arguments in the separation of powers, as most state defendants do in these cases. 

One thing puzzled me about the complaint's allegations.  The complaint states local property tax "rates" for school taxes alone as ranging from about 1.5% to over 6% per annum.  If this is true, then a homeowner with $100,000 of assessed valuation in a 6% district would owe $6,000 per year in just school taxes.  That just does not pass the laugh test.  I suspect that Illinois may have the same problem that Kentucky had before the Rose suit--assessing its property at wildly varying rates, none of which approach 100% of market value, leading to even wider disparities in revenues than even the published numbers would indicate. 

At any rate, if the figures hold up, there appear to be very wide disparities in funding levels in Illinois, and the system might be subject to invalidation under even a rational basis standard.  Keep watching this one!

Year Round Discipline?

Why a we doing this? 

It's dumb and probably not authorized under law. 

Here's the situation. No other branch of government is going to stop a school from expanding their authority in this way. It is just less responsibility on the police, parks, etc. In fact, mayors and other elected officials I am sure love when schools on their own and without funding take on additional responsibility. 

But, the way the law works, once you start taking on additional responsibility, it is very difficult to get rid of it. For instance, several years back, I railed against schools taking on additional responsibility for regulating off-campus speech. But, down the road a bit now, patrolling Facebook and whatnot is now largely seen as a core duty of schools. There was no money for that ... it was just something that schools decided to do on their own (and no one stopped them). And then schools have the gall to talk about not having enough funding to do these things. 

So, again, I'm begging you schools to stay out of this stuff. If the Legislature wanted you to regulate in the summer, they would tell you to and they would pay for it. Otherwise, it is not your problem. I get the arguments that bad behavior might translate into the school year, but that is never going to go away no matter how much you try to regulate. 

Stop it.

Integrationists vs. Choice Advocates in New Orleans

First, thanks to Scott for noting my article attempting to connect the post-Katrina reconfiguration of New Orleans schools to the post-Brown efforts in New Orleans 40 years prior.  Scott humbly failed to mention his own article that was part of the same presentation in New Orleans in January – I am told it will be posted in the near future, so stay tuned. 

Part of what my article attempts to do is place post-Katrina New Orleans in the broader narrative of efforts to deliver more equitable quality educational opportunities for African American students.  If one starts at Brown, that narrative begins with efforts at integration and is currently being dominated by efforts at increasing school choice, particularly through charter schools.  Where integration was about ensuring better educational opportunities for African American students by dismantling racially-identifiable schools, then choice is about ensuring better opportunities for African American students by dismantling failing schools.  

New Orleans represents an opportunity for choicers (I know it sounds a bit too much like “birthers” but it rolls so much more smoothly than “choice advocates”) to seize the flag of equal educational opportunity by implementing widespread choice (currently, more than 60% of students are in charter schools; nearly all schools in the district have district-wide open enrollment) in a largely African American district.  The recognition of this reality is apparent in the vehemence with which integrationists are fighting the post-Katrina New Orleans model. 

This summer, the Institute on Race and Poverty at the University of Minnesota and the Cowen Institute for Public Education Initiatives at Tulane engaged in a colorful, almost incendiary back-and-forth about the ability of the post-Katrina model to deliver for African American students.  Both seek to solve the same problem, but they could hardly disagree more about how to do so. 

[Links to the IRP Report - The State of Public Schools in Post-Katrina New Orleans: The Challenge of Creating Equal Opportunity and the Cowen Institute’s Response] 

In a nutshell, IRP criticizes the post-Katrina model as creating a separate and unequal tiered (and segregated) system of schools.  Specifically, the report criticizes the growing charter school sector for skimming the best students through a variety of practices.  IRP advocates for regionalizing the school system (i.e., erasing district lines among city and suburban districts) and increasing regional magnet options in order to provide more potential racial integration and broader choices for all.  Using IRP’s own words, “When charter schools are the exclusive instrument of school choice in segregated urban districts such as New Orleans, school choice produces substantial inequalities among public school students.” 

The Cowen Institute’s response is harsh, critiquing the IRP analysis as “often incorrect, selective, and misleading.”  It notes that racial segregation in New Orleans schools predates Katrina, that charter schools were proposed to replace a model that had been failing educationally prior to the storm, and that the IRP’s proposed solutions, though not objectionable, are politically unfeasible or unlikely to achieve the desired results. 

Although I certainly have my own opinions on this, what I find most fascinating is the vigor with which two institutions, both arguing on behalf of the same basic endgoal, are fighting this fight.  Reading the documents, the animosity among these two is palpable.  This turf war over the future of reform creating equal educational opportunities is unfolding right before our eyes within a single district.

Kiel on Hurricane Katrina and the Brown Legacy

Our own Daniel Kiel has posted to SSRN a draft of his forthcoming piece, entitled, It Takes a Hurricane: Might Katrina Deliver for New Orleans Students What Brown Once Promised?  Daniel presented this piece last January in a special session of the AALS Annual Meeting focusing on education in New Orleans after "The Storm."  You can download the full text of the draft here. 

Here is the abstract:

Presented as part of a program for the AALS Education Law section entitled “Five Years After Katrina: Access to Education,” this article places post-Katrina education in New Orleans directly in the line of education reform triggered by the decision in Brown v. Board of Education in 1954. The article agues that post-Katrina New Orleans represents the pursuit of the same goal pursued by the Brown plaintiffs: improved access to educational opportunities for students, most of whom are African American, not being equitably served by the status quo. The article then frames these two moments – the Brown decision and Hurricane Katrina – as inertia-jarring events in the history of New Orleans public education and compares the responses to these two hurricanes (one figurative, one literal).

Connecting the post-Brown and post-Katrina eras, the article focuses on themes common to both – state intervention in New Orleans schools and an increase in choice for students – and details the ways in which the response to one has shaped the response to the other. Looking at ways the city has learned from the Brown era and the ways in which the city seems on a path to repeating some of that era’s mistakes, the article argues that success or failure in post-Katrina public education will be impacted by the city’s post-Brown experience. Specifically, although the motivation behind state intervention is clearly different than it was during the Brown era, there remains skepticism about the role of the state in providing for New Orleans public schools.

Further, despite having made choice far more widely available after Katrina than it had been before, the potential for a return to a stratified system of schools – and the class- and race-based resentment such stratification engenders – could threaten the public support New Orleans public schools currently enjoy.

The progress of public education in New Orleans is important beyond the boundaries of Orleans Parish. Post-Katrina New Orleans serves as the pivotal proving ground for the use of increased choice and charter schools to provide more equitable access to quality education. With 61% of New Orleans public school students enrolled in 51 charter schools (both numbers by far the highest in the nation), post-Katrina New Orleans represents an opportunity for the choice movement to demonstrate success on a large scale. Success in New Orleans will lead to broader choice in struggling urban districts across the country. Conversely, failure to deliver improved access to quality education will reverse the current upward trajectory of the choice movement.

Given the stakes, the New Orleans public schools are likely to be among the most scrupulously evaluated in the coming years. However, as scholars and advocates begin evaluating this reform effort and continuing to shape the future of public education in New Orleans, it is imperative to recognize the ways in which the story that precedes the hurricane shapes and impacts the story unfolding in its wake. This article serves will help ensure that happens.

If reformers in New Orleans are able to focus on the goal of increasing access to quality educational opportunities, then the chance created out of the tragedy of Hurricane Katrina will not be wasted. It would be beautifully ironic if, thanks in part to a hurricane, the schools in the city whose segregated railcars gave us Plessy v. Ferguson could finally deliver on that elusive promise of Brown to provide more equitable access to quality educational opportunities.

Religion in Schools

Today, I took the Pew Research Center's mini-survey on religious knowledge.  The main survey's results have already been reported in many media outlets, and the results are interesting--particularly the finding that, of all religious characterizations, those reporting religious identities as Jews, Atheists/Agnosics, and Mormons had the best overall knowledge of world religions. 

That finding aside, I noticed that, on the mini-survey, Question 10 asks, "According to rulings by the U.S. Supreme Court, is a public school teacher permitted to lead a class in prayer, or not?"  The correct answer to this question is "No, not permitted," and almost 90% of respondents got that one right.  However, the next question is, "According to rulings by the U.S. Supreme Court, is a public school teacher permitted to read from the Bible as an example of literature, or not?"  The correct answer to this question is "Yes, permitted."  Only 23% of respondents got that one right.  Those reporting their affiliation as "Jewish" or "Atheist/Agnostic" got it right at a rate of 42% and 40%, respectively, and no other group exceeded a 26% rate of correctness (achieved by White Evangelical Protestants). 

Two initial thoughts: (1) I wonder whether the occasional outcries over "kicking God out of the schools" would have as much force if people broadly understood that a literary approach to the Bible, or a comparative approach to religion in general, is perfectly constitutional, and that the only thing really prohibited is the teaching of a particular religious belief as truth (either directly or obliquely, through obvious support of the belief by teachers or other authority figures).  (2) I wonder what the results would be to a question (may be asked on the main survey--I don't know) to the effect of, "According to rulings by the U.S. Supreme Court, is a public school student permitted to pray while in school, or not?"  The correct answer to this question is "Yes, permitted," but I would not be surprised if most people were to get it wrong. 

Are Athletic Associations Forgetting About Learning?

The UK basketball issue seems resolved, thankfully for us. But, the incident has certainly caused me to question the role of the NCAA. Of course, I'm guessing folks in Tennessee, Florida, North Carolina, Michigan, Southern California, just to name a few high profile programs, are also wondering about such things. The Reggie Bush Heisman issue, the Conference realignment this summer, or any of the other seemingly weekly national news events surrounding the NCAA keep it at the forefront of the national consciousness. 

My main question with the NCAA is, can a billion dollar entity keep students first and money second (at best)? 

Wait, you didn't know about the money? The 6 billion dollar CBS deal? That March Madness generates more revenue than the NFL playoffs, Superbowl included? 

Did you know your state high school athletic association is likely a multi-million dollar enterprise itself? There is so much money that now high school athletic associations are instituting revenue-sharing plans to redistribute the left-over money. 

Why is all this money showing up in the ledgers of non-profits? How much money does it take to assure a level-playing field for the educational benefit of students? Surely less than a 1/2 a billion a year. And, if so, then why does the NCAA continue to receive tax-exempt status? 

Anyone that reads the blog knows my historical unease with, let's say, educationally-sponsored athletics. That winning frequently overtakes learning on the priority list highly concerns me not because winning is bad, but that it should not be public schools that compete in this fashion. We should be looking to maximize learning, not the scoreboard nor the bottom line, so do we use these athletic associations as proxies to do avoid the sticky issues of educational institutions putting learning down the priority list?

So, my question today, and I'm interested in all responses (I've always said I can be convinced otherwise on this), is whether at the college and/or high school athletic association level winning (as defined in $$$) has overtaken student welfare (as defined by learning) as the priority? Let me know. 

Open Access Boost

Today, Google gave Law.gov a 2 million dollar check. It sort of helped their bottom line. 

C'mon law journals and law schools. Step up to the plate here and help us make our own law public. It should be a national embarrassment that it is not so. 

If you want to rehash my previous arguments on this topic, see my video lecture on the topic. 

"Flipping" Ed. Law Instruction

My friend Karl Fisch was featured by Daniel Pink in a story in the Telegraph on Sunday for flipping his instruction such that students do lecture at home and homework at school, instead of the more traditional lecture at school and homework at home. I thought it was a great story and I highly encourage you to read it. 

But, I wanted to use it to point out that for the last 2 years, I have been using the same model in my education law instruction and I wanted to encourage everyone else to consider doing the same.  This model of getting the content done before they come to class and doing homework and activities in class seems to work really great in our field.

First, we actually have specific content knowledge students need to know, such as what their state immunity provision says. Second, though, much of that content is quite boring (even though weirdos like me find immunity statutes fascinating). Third, that content is quite specialized so we rely heavily on textbooks. Fourth, there are few ways to assess that specialized learning outside of class, so the assignments are dull. And, fifth, that leaves us little choice but to wind up with some type of exam as the main assessment. 

Education law is a perfect candidate to be flipped. Get the content online. Record lectures (I can help you learn how, if you like) and post them. Then build readings around them. You can still rely on the textbook (although I would discourage it), but link to the Constitution. Link to cases. Link to summaries. Link to blog posts. Link to news stories. Link, link, link. Once you get enough links, you'll realize the textbook is not as important anymore. Also, let the students have their initial discussions online. Get the basic questions out of the way. If you must, like I do, build in an online quiz to assure students do the reading and the videos. 

Okay, now, all that work you would have done in class is over with. Now is when things get really fun. In the class meetings (of which you now need fewer) do the homework - the activities, the discussions, the modeling and everything else that reinforces the learning that occurred online. It is much more fun that way and the quality of the course improves. While you have them, you can build points around all those activities, so suddenly you realize you don't need an exam. There are plenty of ways to assess learning formatively in real time as the course is happening and those things add up to enough points that an exam is not necessary. 

Granted, flipping the course like this is more work. Now, instead of just lecturing, assigning textbook chapters and writing and exam, you also have to plan activities, manage technology, write on discussion boards and provide more formative feedback, among other things. But, that is the kind of work that actually takes learning to another level, from consuming to engaging. 

Anyway, I've been doing it a couple years and I am never going back. And, if you are interested, there are plenty of resources to help you ... including me personally. Hope you give it a try. 

With the California state budget in free-fall, why can’t the “Governator” charge students for AP classes?

This week the ACLU filed a lawsuit against Arnold Schwarzenegger, Governor of California, alleging that public schools are denying students the free education guaranteed by the state constitution by forcing their families to pay fees to participate in certain classes.  The lawsuit alleges that it is a common practice for California public schools to charge students for workbooks, textbooks, and even novels that are required reading in their courses.

The lawsuit takes specific aim at charging students for participation in Advanced Placement (AP) courses to cover the College Board fee to take the AP test at the end of the course.  It should be noted that passing the course’s AP exam is required for the course to count for college credit; however, it is the school’s decision whether to credit the high school transcript for coursework if the student does not take the exam. Since state education policy requires students to pay for and take the exam as part of course completion, the ALCU alleges that students from low socio-economic backgrounds are further disadvantaged academically because of the required fees.

In California, students can still participate in courses without paying the fees, but the school does not provide the books for students who do not pay for them. The lawsuit argues that California’s policy forces low income students to either not take the classes with fees or participate in the courses without the required textbooks, workbooks or novels, which is an inherent disadvantage. The ACLU complaint also notes an instance where one student was humiliated in class by having her name written on the board for not paying for her course materials.

 In a twist that appeals to the jurisprudence of adequacy funding in education, the lawsuit contends that students who cannot afford the school fees are being denied their fundamental right to basic educational equality that is guaranteed by the California Constitution.  The ACLU is asking that the court enjoin the schools from charging the illegal fees.

Here is a link to the ALCU website that contains the complaint:

https://www.aclu-sc.org/releases/view/103041

P20 Website & Next Generation Learning Summit

So, we launched the P20 website over the weekend. I know some of you have been wondering about it, so the new one is now out and there is space for feedback and whatnot. I'll have more news in the coming weeks about the companion network that is also launching and how to participate in it. Let me know any thoughts you have about the site. 

More importantly, though, tomorrow is a statewide superintendent summit on next generation learning. The Stupski Foundation really stepped up to the plate and worked with us to make this happen, so a big thank you to them. Also, KDE staff have been the chief organizers - even through a transition - so it really took a lot of pressure off of us at UK. Also, we also have to acknowledge the leadership of CCSSO, especially in merging the interests of Kentucky, the national priorities and the priorities of the Stupski Foundation. 

Kentucky is pretty much going all in on Next Generation Learning ... to the extent that all the new positions at KDE have it in the title. They even have a new director of innovation, David Cook, who is our primary partner in Frankfort. Our Governor, Steve Beshear, is even getting behind the effort. And, our former Commissioner who is now in Washington, Gene Wilhoit, is helping to guide the Kentucky effort. Kentucky might have been passed over by Washington, but we know what we can do here ... and we are going to do it with or without outside support. There are so many good people, so many innovators, that the surprise to me would be if Kentucky doesn't substantially move the innovation needle.  

So, tomorrow I'll be tweeting with the hashtag #kynxgl if you want to follow along and ask questions. 

Glad to get this ball rolling ... we'll see where it goes. 

Call for Papers--AALS Education Law Section

The Education Law Section of the Association of American Law Schools has distributed the following Call for Papers for the upcoming Annual Meeting in San Fransisco.  Note that selection comes with publication in the Michigan State Law Review.  Here's the Call:

Call for Papers Announcement

The AALS Education Law Section will hold a program during the AALS 2011 Annual Meeting in San Francisco, California on Immigration and Higher Education.  The panel description is as follows:

Many students attend U.S. colleges and universities who are not U.S. citizens, and many of those students become faculty in the U.S.—especially in the STEM disciplines. The citizenship of these individuals gives rise to numerous legal issues. This panel will address several of these issues both in the U.S. and abroad, including: whether undocumented students in the U.S. should pay in-state or out-of-state tuition as disputed in current litigation in California and Kansas; how universites in the EU operate in terms of out-of-country tuition; and also the licensing of professionals across national borders.

The section invites interested scholars to submit proposals for papers to be included in a symposium to be published in the Michigan State Law Review during spring/summer 2011. One or more papers also may be selected for presentation during the program at the Annual Meeting.

Submissions should be sent via e-mail to Professor Emily Gold Waldman at ewaldman@law.pace.edu by October 15, 2010. Members of the Section’s executive committee will review the submissions and applicants will be notified of the committee’s decision by November 15, 2010.

Eligibility:

Faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Registration Fee and Expenses:

Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.

Time and Date of Panel:

AALS Education Law Section

Immigration and Higher Education

Friday, January 7, 2011, 10:30 a.m. – 12:15 p.m.

2011 AALS Annual Meeting

San Francisco, California

I presented at this conference last year, and it was a great experience.  I encourage all of our law professor readers to send in a paper!  Hat tip to Kristi Bowman, President of the Education Law Section.  

"The Storm" Turns Five

Most people in the Gulf Coast region do not call Hurricane Katrina by its name.  They call it "The Storm."  Perhaps this is because, especially in Mississippi and Louisiana, The Storm so fundamentally changed daily life that it is unnecessary to say which storm one refers to.  Perhaps it is a snub to the Hurricane gods, like turning one's back on a bad memory.  Whatever the reason, The Storm turned five today, and it is worth marking that milestone here on a blog dedicated to education law issues. 

The Storm is of particular interest here at Edjurist because of its profound effects on public schooling policy, especially in New Orleans.  In the past five years, the city schools in New Orleans have become what has often been called a "laboratory of experimentation," a term that Justice Brandeis used to refer to the states in general in defending his ideal of federalism.  New Orleans is now divided into traditional public schools, state-takeover public schools, and several different kinds of charter schools.  Around fifty percent of the schools in New Orleans are presently charters.  This situation is unprecedented in public education, and it is both excting and, in some ways, scary.  From the region, we hear both success stories and worrisome reports of neglect and discrimination--particularly in relation to disabled students. 

With the idea of education law and school reform in New Orleans in mind, I want to call the attention of our readers to two feature law review issues that focus on school reform in New Orleans since The Storm.  One is already published as Issue 2 of Volume 11 of the Loyola Journal of Public Interest Law.  The other will be published as the January 2011 issue of the Journal of Law and Education.  The papers in these volumes reveal a good deal of unknown or under-discussed information about the post-Katrina reforms in the area and their local and national implications, and they are worth a read for anyone interested in large-scale reform efforts. 

The Battle for Detroit Public Schools

One of the most interesting education law issues going on in Michigan is the battle between Robert Bobb, the Detroit Public Schools' (DPS) state-appointed emergency financial manageer and DPS's Board of Education. Multiple lawsuits have been filed.

It illustrates the tension between state authority over education and our tradition of locally controlled schools.  The DPS Board filed a civil suit last summer against Mr. Bobb alleging he exceeded his authority as emergency financial manager because he proposed changes to academics.

Mr. Bobb won the first round of the Board's lawsuit against his plan for the district which made sweeping academic changes when the Court of Appeals reversed a lower court ruling against him.  Read the story here: http://www.mlive.com/news/detroit/index.ssf/2010/05/robert_bobb_wins_round_but_det.html

The case continues in the circuit court, though, and Mr. Bobb and the eleven member board have been ordered to attend hearings related to the lawsuit.  Read the story here: http://www.mlive.com/news/detroit/index.ssf/2010/06/robert_bobb_v_detroit_board_of.html

In the latest development, Robert Bobb will soon be making a recommendation to the Michigan Legislature that DPS have a permanent Inspector General, Auditor General, and Chief Financial Officer to combat years of financial mismanagement, waste, and corruption.  He wants these officials to have the authority to act independently of the local school board.  Read the story here: http://www.mlive.com/news/detroit/index.ssf/2010/0/robert_bobb_preparing_proposal.html The battle continues ....

"The processes and procedures for student elections are under review."

MSNBC reported today that the Nettleson School District in Mississippi recently sent around a memo to its middle school students regarding their opportunity to run for class office.  This memo listed each office available in each grade, and then further specified the racial requirements for each office!!!  Even more astonishing than the actual policy of class office segregation by race (if it is possible to be more astonishing) is the school district's tepid, bureaucratic response to the revelation that it continues to practice Jim Crow education by explicit edict.  The title of this post is the meat of the district's response, but I encourage readers to read the whole thing here. 

Unless this is some elaborate hoax, then we have serious problems in this part of Mississippi.  In my education law classes, I routinely remind my students that, just because the Supreme Court has held that a particular action is unconstitutional, one should not expect that the action is never performed in any school district in the country.  But when I say this, I am generally referring to school-directed prayer, NOT de jure racial segregation.  Truly depressing. 

Class Resources

So, within the past couple days I have received a couple requests from folks about ideas for their school law courses and I have been helping my TA gear up for teaching pre-service teachers about the law. During this time, I was reminded what a good resource the blog is for subject-specific content. I've been building the blog archive now for around a 1/2 a decade, so there are a lot of stories, videos, images, etc. that might be useful in your courses (they certainly are in mine) for generating interest and discussions on these legal topics. I think we school law profs. need to keep in mind that the law is boring to most people and that we really need to liven it up for maximum learning.  

The best way to find these is to use my category archive (under the blog menu above) or the search tool on the right. In fact, since I frequently mention where the event occurred, one good search strategy might be to search for your state and see what comes up. There are over 700 posts in the archive ... I promise there is something you can use in your course if you do a little searching. 

Some archived stuff I have used recently in my courses include:

1. This crazy church/state cross burning teacher from Ohio (use with religion).
2. The continuing insanity of duct-taping students to chairs or putting kids in cages (use with torts). 
3. Pink dyed hair and student speech (use with student expression). 
4. A Kentucky pat-down over $5 and search review (use with search & seizure). 
5. Great This American Life clip on video cameras in schools (use with search & seizure).
6. For those early-childhood folks - if you want to gross them out (use with teacher/student discipline). 
7. If you want to scare teachers away from abusing students (use with harassment). 

Anyway, that's just a taste of what lies waiting for you in the archives - just a heads up. Have a good weekend everyone.